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[Federal Register Volume 89, Number 247 (Thursday, December 26, 2024)]
[Proposed Rules]
[Pages 104946-104950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-30582]

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ENVIRONMENTAL PROTECTION AGENCY

 40 CFR Part 52

[EPA-R02-OAR-2023-0242; FRL 12441-01-R2]

Approval of Source-Specific Air Quality Implementation Plan; New 
York; Lehigh Cement Company LLC

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
approve a revision to the State of New York's State Implementation Plan 
(SIP) for the ozone National Ambient Air Quality Standard (NAAQS) 
related to a Source-specific SIP (SSSIP) revision for Lehigh Cement 
Company LLC, located at 313 Warren Street, Glens Falls, New York (the 
Facility). The EPA is proposing to find that the control options in 
this SSSIP revision implement Reasonably Available Control Technology 
(RACT) with respect to nitrogen oxide (NOX) emissions from 
the relevant Facility source, which is identified as one Portland 
cement kiln (the Kiln). This SSSIP revision is intended to implement 
NOX RACT for the relevant Facility source in accordance with 
the requirements for implementation of the 2008 and 2015 ozone NAAQS. 
This

[[Page 104947]]

proposed action will not interfere with ozone NAAQS requirements and 
meets all applicable requirements of the Clean Air Act (CAA).

DATES: Comments must be received on or before January 27, 2025.

ADDRESSES: Submit your comments, identified by Docket Number EPA-R02-
OAR-2023-0242, at https://www.regulations.gov. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet and will be publicly available 
only in hard copy form. Publicly available docket materials are 
available electronically through http://www.regulations.gov. Follow the 
online instructions for submitting comments. Once submitted, comments 
cannot be edited or withdrawn. The EPA may publish any comment received 
to its public docket. Do not submit electronically any information you 
consider to be CBI or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). For additional submission 
methods, such as the full EPA public comment policy, information about 
CBI or multimedia submissions, and general guidance on making effective 
comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Stephanie Lin, Air Programs Branch, 
Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th 
Floor, New York, New York 10007-1866, 212-637-3711, or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. The EPA's evaluation of New York's submission and RACT analysis
III. Environmental Justice Considerations
IV. Proposed Action
V. Incorporation by Reference
VI. Statutory and Executive Order Reviews

I. Background

Ground Level Ozone Formation

    Ground level ozone is predominantly a secondary air pollutant 
created by chemical reactions that occur when ozone precursors, 
including nitrogen oxides (NOX) and volatile organic 
compounds (VOC), chemically react in the presence of sunlight.\1\ 
Emissions from industrial facilities are anthropogenic sources of ozone 
precursors. The potential for ground-level ozone formation tends to be 
highest during months with warmer temperatures and stagnant air masses. 
Ozone levels are thus generally higher during the summer months, which 
is often referred to as ``the ozone season.'' In New York, the ozone 
season is generally considered to be between April 15 and October 15, 
while the non-ozone season is generally considered to be between 
October 16 and April 14.
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    \1\ Primary standards provide public health protection, 
including protecting the health of ``sensitive'' populations such as 
asthmatics, children, and the elderly. Secondary standards provide 
public welfare protection, including protection against decreased 
visibility and damage to animals, crops, vegetation, and buildings.
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Ozone Nonattainment

    A geographic area of the United States that is not meeting the 
primary or secondary National Ambient Air Quality Standard (NAAQS) for 
ozone is described as a nonattainment area. Nonattainment areas are 
classified as either Marginal, Moderate, Serious, Severe, or Extreme. 
With respect to this proposed action, there are two relevant ozone 
NAAQS standards. First, on March 12, 2008, the EPA promulgated a 
revision to the ozone NAAQS, setting both the primary and secondary 
standards at 0.075 parts per million (ppm) averaged over an 8-hour time 
frame (2008 8-hour Ozone Standard). See 73 FR 16436 (March 27, 2008). 
Second, on October 1, 2015, the EPA lowered these standards to 0.070 
ppm averaged over an 8-hour time frame (2015 8-hour Ozone Standard). 
See 80 FR 65292 (October 26, 2015).
    The State of New York has two ozone nonattainment areas: (1) 
Jamestown, and (2) the New York Metro Area,\2\ consisting of the Bronx 
County, Kings County, Nassau County, New York County, Queens County, 
Richmond County, Rockland County, Suffolk County, Westchester County. 
Under CAA section 184, the State of New York is located within the 
Ozone Transport Region (OTR), which means that it is subject to 
statewide RACT requirements. This Facility is not located in an ozone 
nonattainment area, but it is still required to implement RACT because 
it is located within the OTR.
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    \2\ The New York Metro Area is part of the greater nonattainment 
area New York-N. New Jersey-Long Island, NY-NJ-CT.
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Federal RACT Requirements

    RACT is defined as the lowest emission limit that a source is 
capable of meeting through the application of control technology that 
is reasonably available considering technological and economic 
feasibility. The CAA section 182, Plan Submissions and Requirements, 
requires States with ozone nonattainment areas to include in their 
statewide SIPs, among other things, provisions to require the 
implementation of RACT. CAA section 184(b)(2) \3\ sets forth the 
requirement to establish control measures to implement RACT for major 
sources of VOC located in the OTR. For major sources of NOX, 
the CAA section 182(f)(1) also applies, ``The plan provisions required 
under this subpart for major stationary sources of volatile organic 
compounds shall also apply to major stationary sources (as defined in 
section 7602 of this title and subsections (c), (d), and (e) of this 
section) of oxides of nitrogen.'' The State of New York is located 
within the OTR, and thus the State is required to implement RACT for 
all major sources of NOX within the State. RACT for a 
particular source is determined on a case-by-case basis, considering 
the technological and economic circumstances of the individual source.
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    \3\ CAA 182(f)(1) also states:
    The plan provisions required under this subpart for major 
stationary sources of volatile organic compounds shall also apply to 
major stationary sources (as defined in section 7602 of this title 
and subsections (c), (d), and (e) of this section) of oxides of 
nitrogen.
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NYSDEC RACT Requirements

    The New York State Department of Environmental Conservation 
(NYSDEC) RACT regulations require applicable facilities to meet certain 
requirements, referred to as ``presumptive RACT requirements.'' These 
presumptive requirements generally require sources to implement 
emission limits, control efficiency requirements, specific control 
technologies, averaging plans, and/or fuel/raw material switching 
practices. In some instances, the presumptive RACT requirements may not 
be technologically or economically feasible for a certain source, and 
the State can make a source-specific RACT determination, which is 
submitted to the EPA as a SSSIP. The SSSIP should include the 
facility's RACT plan that demonstrates how the facility will implement 
RACT. The SSSIP will also

[[Page 104948]]

include the applicable CAA title V operating permit conditions that 
address RACT requirements. These permit conditions for the Facility 
will become part of the Federally enforceable SIP upon the EPA's final 
approval of this SSSIP.
    Under existing NYSDEC RACT regulations, facilities are required to 
assess all technologically feasible control options that meet the 
State's cost threshold. The cost threshold for NYSDEC RACT requirements 
is found under NYSDEC 2013 policy, ``DAR-20 Economic and Technical 
Analysis for Reasonably Available Control Technology (RACT).'' Under 
this policy, facilities must consider in their RACT determinations 
control technologies that remove VOC or NOX emissions up to 
a certain cost threshold, expressed in a dollar amount per ton of VOC 
or NOX removed, which includes an inflation-adjusted 
economic threshold.\4\
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    \4\ The DAR-20 cost threshold is based on 1994 dollars. State of 
New York relies on the U.S. Department of Labor, Bureau of Labor 
Statistics inflationary calculator to adjust the RACT economic 
feasibility threshold over time for inflation. See https://www.bls.gov/data/inflation_calculator.htm.
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II. The EPA's Evaluation of New York's Revision and RACT Analysis

    This action relates to a SSSIP revision that concerns a Portland 
cement manufacturing and quarry facility operated by Lehigh Cement 
Company LLC, located in Glens Falls, New York. This Lehigh Cement SSSIP 
was submitted by NYSDEC on July 1, 2022, and is intended to implement 
NOX RACT for the Kiln for purposes of the 2008 and 2015 
ozone NAAQS. This Lehigh Cement SSSIP replaces and withdraws the Lehigh 
Cement SSSIPs that were submitted by the State on September 16, 2008, 
and December 18, 2013. In this SSSIP submittal, the EPA has reviewed 
the RACT determination for the Kiln for consistency with the CAA and 
the EPA regulations, as interpreted through EPA actions and guidance.
    The source at issue in this action is a short, dry preheater Kiln. 
NYSDEC RACT regulations establish RACT requirements for this source in 
6 NYCRR Subpart 220-1, ``Portland Cement Plants,'' last approved in the 
New York SIP by the EPA on July 12, 2013. However, 6 NYCRR Subpart 220-
1 does not establish presumptive NOX RACT emission limits 
for cement kilns due to the uniqueness of cement manufacturing 
operations. Instead, under 6 NYCRR Subpart 220-1.6(b), the Facility 
must submit a RACT analysis along with the Air Title V Facility Permit 
application that proposes a RACT emission limit(s) and identifies the 
procedures and monitoring equipment to be used to demonstrate 
compliance with the proposed RACT emission limit(s). Here, NYSDEC 
determined that the Facility's analysis adequately evaluated RACT. Such 
source-specific determinations must be submitted to the EPA as a SSSIP.
    In November 2010, the Facility conducted a NOX RACT 
analysis for the Kiln (Emission Unit 0-UKILN) specifically applicable 
under the Federally approved 6 NYCRR Subpart 220-1.6(b). The RACT 
analysis included the following: (1) An identification of available 
NOX control technologies; (2) projected effectiveness of 
each control technology identified; (3) costs for installation and 
operation of each technology; and (4) determination of the control 
technology and emission limit selected as RACT.
    Lehigh installed and is currently operating a selective non-
catalytic reduction (SNCR) system to meet NOX RACT as a 
result of their 2010 NOX RACT analysis.\5\ In addition, the 
Federally approved version of 6 NYCRR Subpart 220-1.7(d) requires 
owners or operators of a Portland cement kiln to install and operate a 
CEMS to monitor NOX emissions from the cement kiln in 
accordance with the provisions of 40 CFR part 75, and to demonstrate 
compliance with the NOX RACT emission limit on a 30-day 
rolling average basis.
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    \5\ On September 9, 2010, the EPA published the New Source 
Performance Standards for Portland Cement Plants (NSPS Subpart F). 
In that proposal, the EPA determined that SNCR was deemed to be the 
Best Demonstrated Technology (BDT) for NOX in cement 
plants,'' . . . we [the EPA] determined SNCR to be BDT and applied a 
control efficiency for the SNCR to the baseline uncontrolled level 
to determine the appropriate NOX level consistent with application 
of BDT . . . SNCR performance has been shown to range from 20 to 80 
percent NOX removal.'' See 75 FR 54970.
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    A nationwide Federal consent decree (CD), Civil Action #5:19-cv-
05688, was executed on November 18, 2020, due to violations that 
occurred, in pertinent part, at one or more of Lehigh Cement Company 
LLC's (Lehigh) Portland cement plants. The obligations of the CD were 
negotiated between Lehigh and the U.S. Department of Justice (on behalf 
of EPA as well as non-federal jurisdictions, including the State of New 
York), and are binding.
    The terms of the CD imposed a lower emission limit (2.5 lbs 
NOX/ton clinker (30-day rolling average)) upon the Kiln that 
meets Best Available Control Technology (BACT), which is based on the 
maximum degree of control that can be achieved. The NOX 
emission controls and associated cost analysis from the November 2010 
RACT analysis for the Kiln were determined to be acceptable as RACT by 
the NYSDEC. EPA is proposing to conclude that an August 27, 2021, 
NOX RACT evaluation to support Lehigh's Title V permit 
renewal application has successfully demonstrated that the emissions 
limit continues to be acceptable as RACT, with the RACT emission limit 
for the Kiln calculated as 2.9 lbs NOX/ton clinker (30-day 
rolling average). Since BACT is the maximum degree of control that can 
be achieved, BACT generally imposes more stringent requirements than 
RACT. Given that the BACT emission limit imposed by the CD is lower 
than the previously calculated RACT limit, the EPA is proposing to find 
that the BACT limit now represents RACT for this source. Here, the CD 
requires the Facility, beginning on or before May 18, 2021, to: (1) 
limit NOX emissions from the Kiln to 2.5 lbs per ton of 
clinker produced with an 30-day rolling average; (2) install and 
commence continuous operation of an Selective Non-Catalytic Reduction 
(SNCR) NOX control technology; and (3) install and operate a 
NOX Continuous Emissions Monitoring System (CEMS) at each 
stack, which collects emissions from the applicable kiln in accordance 
with the requirements of 40 CFR part 60.
    To comply with the requirements outlined in the CD, Lehigh revised 
its Air Title V Facility Permit to contain two permit conditions 
(permit conditions 85 and 86) that include the NOX 
monitoring requirements and emission limitations as non-expiring 
obligations. A copy of the CD is located in the docket of this 
rulemaking, Docket Number EPA-R02-OAR-2023-0242, at https://www.regulations.gov.
    The intended effect of this source-specific SIP revision is to: 
establish the source-specific emission limit by incorporating the 
NOX emission limit imposed by the CD and associated 
monitoring requirements into the Facility's source-specific SIP.
    The EPA is proposing to determine through this SSSIP action that 
the NOX emission limit submitted by the State in this SSSIP 
for the Kiln is the lowest emission limit with the application of 
control technology that is reasonably available given technological and 
economic feasibility considerations. The respective NOX RACT 
emission limit is contained in the Facility's Title V operating permit, 
5-5205-00013/00058, under Conditions 85 and 86. This renewal permit was 
issued by the State on February 28, 2022, and expires on February 27, 
2027.
    The Facility submitted a RACT plan for the emission limit 
requirements and

[[Page 104949]]

NYSDEC reviewed and approved the emission limit as adequately 
implementing RACT for the source. NYSDEC then submitted the source-
specific SIP revision package at issue in this action for EPA approval, 
and the EPA is proposing to approve the respective emission limit as 
implementing RACT for this source. The emission limit for the Facility 
will become part of the Federally enforceable SIP upon the EPA's final 
approval of this SSSIP.
    The EPA is proposing to determine that the proposed limit for 
Emission Unit 0-UKILN implements RACT because the Facility's more 
stringent BACT NOX emissions limit imposed by the consent 
decree of 2.5 lbs NOX/ton clinker (30-day rolling average) 
is more stringent than the 2.9 lbs NOX/ton clinker (30-day 
rolling average) limit required to implement RACT for this source.

III. Environmental Justice Considerations

    The CAA and applicable implementing regulations neither prohibit 
nor require an evaluation of environmental justice (EJ) considerations 
and/or concerns, and so the State of New York did not evaluate EJ 
concerns as part of its SSSIP submittal. The EPA evaluated EJ concerns 
for informational purposes only and is providing the following details 
for transparency about this rulemaking to the public. The EPA did not 
rely on this information to reach any decisions described in this 
action. The EPA created a Community Report (Report) using its EJ 
Screen, Version 2.3. The Report is contained in the EPA docket assigned 
to this Federal Register document.
    The Report addresses a 1-mile ring centered at the Facility. All 
thirteen EJ Screen environmental indexes were considered for the 
Report: (1) Particulate matter; (2) ozone; (3) nitrogen dioxide; (4) 
diesel particulate matter; (5) toxic releases to air; (6) traffic 
proximity; (7) lead paint; (8) superfund proximity; (9) risk management 
plan (RMP) facility proximity; (10) hazardous waste proximity; (11) 
underground storage tanks; (12) wastewater discharge; and (13) drinking 
water noncompliance. Both the EJ Indexes and the Supplemental Indexes 
were verified using the thirteen environmental indexes. The difference 
between the EJ and Supplemental indexes is that the EJ Indexes combine 
data on low income and people of color populations, whereas the 
Supplemental Indexes combine data on percent low-income, percent 
persons with disabilities, percent limited English speaking, and low 
life expectancy. We analyze both EJ Indexes and Supplemental Indexes 
because they offer different perspectives on community level 
vulnerability based on different factors. The EPA uses the National 
percentile for the Report results and not the State percentile since 
this SSSIP action is a Federal action. The EPA notes that any 
environmental index result that is 80 percentile or greater is 
relatively high compared to the United States population. The 
``percentile'' is what EJ Screen uses to compare the area of study to 
national figures.
    The results of the EPA's environmental justice analysis indicated 
that the following National Supplemental Indexes were above the 80th 
percentile: Superfund Proximity and RMP Facility Proximity.
    In addition, via EJScreen, the Facility was determined to be in a 
Justice40 area. In January 2021, President Joe Biden issued Executive 
Order (E.O.) 14008, Tackling the Climate Crisis at Home and Abroad. 
Section 223 of the E.O. established the Justice40 Initiative which 
directs 40 percent of certain Federal investments to flow to 
disadvantaged communities.
    To understand the indexes that are at or higher than 80th 
percentile, and the Justice40 categories that represent Glens Falls, 
NY, refer to Lehigh Cement Environmental Justice Considerations and 
Lehigh Cement EJ Screen Community Report June 4, 2024 in docket 
assigned to this Federal Register document.

IV. Proposed Action

    The EPA is proposing to approve this current source-specific 
revision because the limit included in the SSSIP is demonstrated to 
implement RACT for the Kiln. Based on an analysis of this source-
specific SIP revision, the EPA proposes to approve Lehigh Cement 
Company LLC's operation under the NOX emission limit 
approved by NYSDEC for the Facility's Kiln.

V. Incorporation by Reference

    In this document, the EPA is proposing to include regulatory text 
that includes incorporation by reference. In accordance with 
requirements of 1 CFR 51.5, the EPA is proposing to incorporate by 
reference revisions to Lehigh Cement Company LLC Title V operating 
permit conditions 85 and 86 as described in section II of this 
preamble. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov and at the EPA Region 2 
Office (please contact the person identified in the FOR FURTHER 
INFORMATION CONTACT section of this preamble for more information).

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a 
SIP submission that complies with the provisions of the Clean Air Act 
and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). 
Thus, in reviewing SIP submissions, EPA's role is to approve State 
choices, provided that they meet the criteria of the Clean Air Act. 
Accordingly, this action merely approves State law as meeting Federal 
requirements and does not impose additional requirements beyond those 
imposed by State law. For that reason, this action:
     Is not a significant regulatory action subject to review 
by the Office of Management and Budget under Executive Orders 12866 (58 
FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not subject to Executive Order 13045 (62 FR 19885, 
April 23, 1997) because it approves a State program;
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001); and
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the Clean Air Act.
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have Tribal implications and will not impose 
substantial direct costs on Tribal governments or preempt Tribal law as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

[[Page 104950]]

    Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on communities with environmental justice 
(EJ) concerns to the greatest extent practicable and permitted by law. 
Executive Order 14096 (Revitalizing Our Nation's Commitment to 
Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on 
and supplements E.O. 12898 and defines EJ as, among other things, the 
just treatment and meaningful involvement of all people, regardless of 
income, race, color, national origin, or Tribal affiliation, or 
disability in agency decision-making and other Federal activities that 
affect human health and the environment.
    The New York State Department of Environmental Conservation did not 
evaluate EJ considerations as part of its SIP submittal; the CAA and 
applicable implementing regulations neither prohibit nor require such 
an evaluation. EPA performed an EJ analysis, as is described earlier in 
the section titled, ``EJ Considerations.'' The analysis was done for 
the purpose of providing additional context and information about this 
rulemaking to the public, not as a basis of the action. In addition, 
there is no information in the record upon which this decision is based 
inconsistent with the stated goal of E.O. 12898/14096 of achieving EJ 
for communities with EJ concerns.

List of Subjects 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Oxides of nitrogen, Ozone, 
Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et seq.

Lisa Garcia,
Regional Administrator, Region 2.
[FR Doc. 2024-30582 Filed 12-23-24; 8:45 am]
BILLING CODE 6560-50-P
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